Independent Review into the Future Security of the National Electricity Market Blueprint for the Future, Jun 2017

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5.3 Network regulation

In designing the NEM, governments sought to capture the benefits of competition. The NEM’s wholesale and financial markets are designed to provide incentives for efficient investment in electricity generation. In contrast, and in recognition of their natural monopoly characteristics, electricity transmission and distribution networks are planned and their revenues regulated to incentivise network businesses to make investments that support efficient, secure and reliable electricity supply, while preventing over-investment and excessive prices.283

Network incentives

Electricity networks are natural monopolies. Even with advances in technology, it is unlikely to be economically efficient for a competitor to duplicate the assets needed to provide the service. This means that economic regulation is needed so that network service providers do not use their market power to earn excess profits, reduce reliability or refuse to serve some consumers.

Economic regulation in the NEM works by allowing network service providers to recover the efficient costs of delivering network services in a manner that meets all of their regulatory obligations, for example reliability standards. Network service providers develop proposals regarding the level of expenditure required to meet these obligations and the resulting level of revenue that needs to be recovered from consumers through network tariffs. These proposals are reviewed by the AER, which can approve the revenue proposals or substitute its own assessment of the efficient level of revenues.

Once the regulated revenue is set, there are incentives for network service providers to limit their spending within each regulatory period (generally five years). If a network service provider spends less than the amount that the AER determined to be an efficient estimate of capital expenditure (capex) or operating expenditure (opex), it retains some of the savings and passes the remainder on to consumers through reduced network charges in the next regulatory period.284 Provided it is at or below the level approved by the AER, capex is rolled into the regulatory asset base at the start of the next regulatory period, and the network service provider earns revenue on that asset base over the economic life of the assets based on a regulated rate of return.

There has been significant debate about whether the current network regulatory regime is effective in incentivising efficient investment given the scale of network expenditure in recent years. A package of reforms to the network regulatory framework were made in 2013 to address these concerns.

Reducing incentives for network over-investment

The potential cost impact of network investment is a critical consideration for the development of a future NEM, particularly given that significant investments are likely to be required to connect new renewable energy resources to the grid. Keeping investment to efficient levels is particularly important in light of widespread community and stakeholder concern about the scale of recent network investments. Many stakeholders question the efficiency of recent network investments and suspect that there has been a significant degree of over-investment. They are particularly concerned about the impact these investments have had on costs for consumers.

Limited Merits Review

Network businesses and affected consumers can use a process known as the Limited Merits Review to seek review by the Australian Competition Tribunal of AER revenue and other determinations. The grounds for review are that the determination involved an error of fact, an incorrect exercise of discretion, or an unreasonable decision having regard to all the circumstances. The Tribunal can choose to reject an application, substitute the AER’s decision with its own determination, or remit the decision to the AER for new determination.285 Most of the AER’s decisions have been appealed.

Concerns about the effectiveness of the Limited Merits Review process led the Energy Council, in 2013, to implement a range of reforms to improve the operation of the regime so it focused on outcomes in the long-term interests of consumers.286 Despite these reforms, the scale of the revenues at stake mean that network businesses still have a strong incentive to challenge the AER’s determinations.

In 2016, NSW and ACT distribution networks successfully appealed the AER’s revenue determinations in the Australian Competition Tribunal. The AER appealed to the Full Federal Court against the Tribunal’s decision. In May 2017, the full court upheld most aspects of the Tribunal’s decision.

The Energy Council, in 2016, reviewed the Limited Merits Review regime to assess its effectiveness and considered a range of reforms, including the option of abolishing it altogether. The Energy Council was unable to reach a consensus on the need to abolish the regime but agreed, in principle, to further reforms, including:287

Tightening and clarifying the grounds for review.

Higher financial thresholds for leave, which apply to individual grounds for review.

Reviews to be conducted on the papers, rather than through expensive and adversarial oral hearings.

Reviews to be conducted within a strict timeframe.

A strengthened requirement for review appellants to demonstrate that overturning the regulator’s decision would not be to the serious detriment of the long-term interests of consumers.

More flexible arrangements for consumer participation in reviews.

Introduction of a binding rate-of-return guideline, with relevant elements of the regulator’s decision not subject to merits review.

Removing opportunities for gaming by limiting the timeframes in which material can be submitted to the AER.

Costs of reviews, including those of the AER, to be borne by network businesses.

At the time of writing, work to develop the detail of the reform package is ongoing and subject to final agreement by ministers.

Detailed analysis of the Limited Merits Review regime and the case for its reform or abolition is beyond the scope of this Review. However, the Panel notes that the proposed reform package would deliver a range of benefits, including a clearer focus on whether the AER has made errors rather than differences of professional opinion and better decisions in the long-term interests of consumers.

The Panel considers that the proposed package of reforms should be finalised and implemented as soon as practicable in order to deliver better outcomes for consumers.

Recommendation 5.4

By end-2017, the COAG Energy Council should finalise and implement the proposed reforms to the Limited Merits Review regime.

More equitable consideration of alternatives to network investment

New technologies and business models, including those deployed within the distribution network, are changing the nature of transmission and distribution investment. As the range of technologies offering alternative solutions to network investment grows and matures, transmission and distribution infrastructure is less likely to be replaced on a like-for-like basis given the growing range of alternatives to network investment available. Where there is a high degree of uncertainty, the efficient investment choice may be a short-term solution that addresses near-term risks without locking in longer term costs. This may allow options to be kept open until long-term investment decisions can be made with greater certainty.

The AEMC has released a draft rule change to increase the transparency of network investment decisions and ensure that all capital investments, including replacements, are treated consistently. Specifically, the draft rule change:

Specifies that information on all planned asset retirements in distribution and transmission networks, including the reasons for the retirements, is to be included in the distribution and transmission annual planning reports.

Specifies that information on planned de-ratings that result in a constraint on a network, including the reasons for these, is to be included in the annual planning reports.

Requires TNSPs to report consistently on transmission network needs and the options for addressing them, irrespective of whether they are identified in the context of network replacements or augmentations.

Extends the RIT-T and RIT-D processes to network replacement expenditure decisions.

Requires asset management reporting to be included in the transmission annual planning reports.

Clarifies that the RIT-T is to be retaken where there is a material change in circumstances.

Specifies that distribution annual planning reports will need to include information on investments in information technology and communications systems related to the management of network assets.288

If implemented, the rule change should assist with the identification of efficient alternative solutions to network investments, and will also improve coordination of generation and transmission investment by improving information sharing.289

Strengthening the Regulatory Investment Test for Transmission

The RIT-T aims to identify the option that best addresses the needs of the network and maximises economic benefits with respect to generation, transmission, distribution and consumption of electricity. Its purpose is to achieve the National Electricity Objective by ensuring that transmission networks are only able to earn a regulated rate of return from consumers on efficient investments, thereby minimising the risk of consumers paying for unnecessary investments.

The RIT-T is intended to be a transparent and consultative planning process that allows for the objective evaluation of transmission investments against credible network and non-network alternatives. Interested parties are able to propose alternative solutions and have them evaluated, notionally on an equal footing. The RIT-T identifies several classes of market benefits that can be considered but allows for the inclusion of additional benefits if approved by the AER. It models expected future outcomes under a range of scenarios.

The RIT-T is self-administered by each TNSP as the central planner for their part of the network. The AER’s role is limited to ensuring the legislative requirements for the RIT-T are adhered to and resolving disputes between interested parties. It can also be asked to decide whether a preferred option satisfies the RIT-T.290 The AER has not had to resolve a dispute to date.291 The AEMC has reported that the number of RIT-Ts being undertaken is growing as TNSPs grapple with changing patterns of generation investment.292

Some stakeholders have raised concerns about transmission planning through the RIT-T.

Key concerns raised by TNSPs centre on the fact that it does not capture all the benefits of transmission, notably:

It does not capture the consumer benefits from increased competition, such as when low cost electricity is made available to consumers in a region with a scarcity of generation.

It does not capture the environmental benefits of transmission, such as its capacity to enable increased renewable energy generation and lower emissions.

It does not capture broader economic benefits beyond the NEM.293

The key concern raised by non-TNSPs was that self-administration of the test by TNSPs enables them to use the RIT-T process to favour network investments over non-network solutions.

The Energy Council’s review of the RIT-T was published in February 2017. The review assessed whether the RIT-T remains fit for purpose in the current electricity market. It considered the appropriateness, effectiveness and efficiency of the test, with a focus on the balance between timeliness and rigour; its ability to capture the full costs and benefits of transmission projects; whether it is appropriate to facilitate strategic interconnection investment decisions; and the effectiveness of the current governance arrangements surrounding the test.294

The RIT-T review found that the current framework allows TNSPs to consider competition but, consistent with the National Electricity Objective, is confined to looking at costs and benefits that occur within the electricity sector only. It found that environmental and other non-market benefits can also be considered.295 The review also found that providers of non-network solutions faced barriers to participation in the RIT-T process, including a lack of information and engagement by TNSPs.296

Ultimately, the Energy Council review found that the RIT-T remains an appropriate mechanism to ensure that transmission augmentations are in consumers’ long-term interests but recommended a number of refinements to improve its operation in light of the transition, including:

Reviewing the RIT-T application guidelines to better reflect the net system benefits of option values created by transmission projects, including with respect to maintaining system security, and achieving renewable energy and emissions reduction goals.

Ensuring that non-TNSPs are involved in the RIT-T process and transmission annual planning reports.

Exploring the merits of increasing the AER’s oversight of the RIT-T process to address concerns about:

    1. Network businesses’ incentives to select projects that increase their regulated asset base ahead of
      non-network options.

    2. The current rules that allow the capital costs of projects to be incorporated in a network’s regulated asset base, thereby contributing to their regulated rate of return, regardless of outcomes of a RIT-T assessment.

The changes to the RIT-T process are designed to address the issues raised by stakeholders in their input to that review. As such, the reforms proposed by the Energy Council should be given an opportunity to work before further changes are made. However, the RIT-T should be subject to further review within three years to ensure the reforms have been effective and are delivering appropriate outcomes.

Distribution network regulation

The energy transition will also affect the distribution networks that transport electricity from connection points on the transmission network to consumers throughout urban and regional areas. Like transmission networks, there has been significant investment in distribution infrastructure in recent years. Much of this was undertaken on the basis of inaccurate demand forecasts, and the cost of these investments are flowing through to consumers. The combined value of distribution network assets is $68 billion. This is more than three times the value of transmission networks.297

The role of distribution networks are changing. Significant amounts of VRE generation is being connected within distribution networks. Rather than being a vehicle for the one way delivery of electricity from generators to consumers, they are becoming platforms for trading in a range of electricity services. This is discussed further in Chapter 6. In this context, it will be important to ensure that the RIT-D remains fit for purpose and is effective in identifying the most appropriate investment to meet the needs of the network. The RIT-D commenced in 2014. It has not been in place for long enough to warrant review at this stage. It would be appropriate to review it in three years’ time, in parallel with the review of the RIT-T.

Recommendation 5.5

By mid-2020, the COAG Energy Council should commission a further review of the Regulatory Investment Test for Transmission to ensure the suite of reforms implemented following the 2017 COAG Energy Council review have been effective in addressing stakeholder concerns.

A review of the Regulatory Investment Test for Distribution should be conducted at the same time.

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